Warwick v Rogers and Others
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 1843 |
| Date | 11 January 1843 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 595
IN THE COURT OF COMMON PLEAS
S. C. 6 Scott, N. R. 1; 12 L. J. C. P. 113. See, Pollard v. Bank of England, 1871, L. R. 6 Q. B. 627. Approved, Prince v. Oriental Bank Corporation, 1878, 3 App. Cas. 325.
[340] warwick v. eogers and others. Jan. 11, 1843. [S. C. 6 Scott, N. E. 1; 12 L. J. C. P. 113. See, Pollard v. Bank of England, 1871, L. E. 6 Q. B. 627. Approved, Prince v. Oriental Bank Corporation, 1878, 3 App. Cas. 325.] A. was the holder of a foreign bill drawn upon B., in England, and accepted by B., payable at the banking-house of C. On the morning when the bill became due, D., as A.'s banker, took the bill to the clearing-house in London, and put it into C.'s drawer. C. having examined the bill, and having funds of B.'s in his hands at the time, cancelled the acceptance by drawing lines across B.'s name, without rendering the acceptance illegible. In the course of the day B. finding himself to be insolvent, ordered C. not to pay the bill; whereupon C. wrote thereon " cancelled by mistake-orders not to pay :" and the bill was returned in this state to D. at the clearing-house before the settling hour. It is the usage in the trade in London so to cancel bills intended to be paid, and where a cancellation has occurred through mistake, to indicate the same by writing on the bill;-Held, that under these circumstances, no legal liability was cast upon C., from which a promise could be inferred that he would pay the amount of the bill or return it without having cancelled or destroyed the acceptance;-That the duty cast upon C. was no more than to take due care of the bill, and if he did not choose to pay it, to return it uncancelled unless it had been cancelled by mistake, and in that case to indicate the same by writing on the bill;-That C. did use due care to prevent the acceptance from being defaced;-That the acceptance was an acceptance defaced and cancelled in point of fact, but that it was an acceptance cancelled by mistake.-Semble, that a banker who omits to return, or defaces, a bill is not, in all cases, under an obligation to pay the amount;-But semble, if he do so wrongfully he becomes liable to an action on the case if the holder has sustained damage by his breach of duty.-ò Held also, that under the circumstances above stated, A. could not sue C. for money had and received.-The facts having been found by 'a special verdict in the ordinary way :-Held, that the case was not within the 3 & 4 W. 4, c. 42, s. 24 :- Held also, that after special verdict, the pleadings could not be amended. Assumpsit. The first count of the declaration stated, that certain persons using the style or firm of H. E. and S. Barker and Co., before the making of the promise thereinafter next mentioned, to wit, on the 15th of October 1835, at Smyrna, in parts beyond the seas, made and drew their certain bill of exchange, directed to Mr. Eichard (a) The legislature having declared it to be unlawful for .a licensed publican to suffer gaming on the premises, and having also made it penal to act as a publican without a licence, quaere, whether the publican who disobeys the act by omitting to take out a licence, thereby acquires an exemption from its provisions, those provisions having reference not to the licence, but to the trade carried on. (b) The amendment would, therefore, seem to have been merely ex abundanti cautela. 596 WARWICK V. ROGERS S MAN. # G.HSt Jellicoe, London, and thereby requested the said E. J., at sixty-one days after sight thereof, to pay by that their first bill of exchange to the order of Mr. Alexander Bargigli the sum of 3001. sterling, value of the same; which bill the said A. B. [341] afterwards, to wit, on the day and year aforesaid, indorsed and delivered to a certain person in such indorsement mentioned, to wit, one Vincent Bavertrelly, who afterwards, to wit, on the 21st of October in the year aforesaid, indorsed and delivered the same to a certain person in such indorsement mentioned, to wit, Michael Badetty, who afterwards, to wit, on the 17th of November in the year aforesaid, indorsed and delivered the same to certain persons in such indorsement mentioned, to wit, A. Hesse and Co., who afterwards, to wit, on the day and year last aforesaid, indorsed and delivered the same to a certain person in such indorsement mentioned, to wit, one Jonas Hagerman, who afterwards, to wit, on the 30th of November in the year aforesaid, indorsed and delivered the same to certain persons in such indorsement mentioned, to wit, B. L. Fould and Foulds Oppenheim, who afterwards, to wit, on the day and year last aforesaid, indorsed and delivered the same to the plaintiff: that, after the making and drawing of the said bill, to wit, on the 23d of November in the year aforesaid, the said E. J. duly accepted the said bill, and by such acceptance, written upon the said bill, made the' same payable at the banking-house of the defendants : that, after the said several indorsements, and after the said acceptance, when the said bill became due and payable, according to the tenor and effect of the said bill and of the said acceptance thereof, to wit, on the 26th of January 1836, the said bill was duly presented and shewn to the defendants, at their said banking-house, for payment thereof according to the tenor and effect of the said acceptance, and the defendants were thereupon then requested by the plaintiff to pay him the same ; and thereupon afterwards, to wit, on the day and year last aforesaid, in consideration that the plaintiff would deliver the said bill to the defendants without receiving the sum of money expressed therein, at the time of such [342] delivery, the defendants promised the plaintiff that they the defendants would, until they should have determined whether they would pay the sum of money in the said bill expressed or return the said bill to the plaintiff, use due care to prevent the said acceptance from being defaced or obliterated, and would, upon being requested so to do, in a reasonable time in that behalf, pay to the plaintiff the said sum of money or return the said bill to the plaintiff without having cancelled or destroyed the said acceptance. Averment: that the plaintiff, confiding in the said promise, did thereupon then deliver the said bill to the defendants without receiving, at the time of such delivery, the said sum of money expressed in the said bill, or any part thereof: yet the defendants did not nor would, after such delivery to them of the said bill, and before they had determined whether they would pay the said sum of money in the said bill expressed or return the said -bill to the plaintiff, use due care to prevent the said acceptance from being defaced or obliterated; but, on the contrary thereof, the defendants, after such delivery, and before such determination, to wit, on the day and year last aforesaid, used so little .care in that behalf, that the said acceptance, through the want of care of the defendants in that behalf, became and was defaced and obliterated: that afterwards, and in a reasonable time in that behalf, he the plaintiff requested the defendants to pay to him the said sum of money expressed in the said bill, or to return the said bill to him the plaintiff, without having cancelled or destroyed the said acceptance; yet the defendants, further disregarding the said promise, did not nor would, when they were so requested as aforesaid, or at any other time, pay to the plaintiff the sum of money in the said bill expressed, or any part thereof; .or return the said bill to the plaintiff without having cancelled or destroyed the same; but, on the contrary [343] thereof, the defendants on that occasion refused to pay to the plaintiff the said sum of money in the said bill expressed, and cancelled and destroyed the said acceptance, and returned the said bill to the plaintiff with the said acceptance so cancelled and 'destroyed; by reason of which premises, not only had the plaintiff lost and been deprived of the benefit of the said acceptance and of his recourse and remedies against the drawer and indorsers of the said bill respectively, but certain persons, to wit, Heath, Furze, and Co., to whom the said bill had been addressed in case of need by certain indorsers of the said bill through whom the plaintiff became such indorsee and holder thereof as aforesaid, to wit, the said A. Hesse and Co., and who, but for such defacing and obliterating of the said acceptance, would have taken up and paid the said bill for the honour of the said indorsers of the said bill, to wit, A. Hesse and 5 MAN. &G. 344. WAEWIGK V. ROGERS 597 Co., wholly refused to take up and pay the said bill, and the said bill and the said sum of money still remained wholly unpaid, due, and unsatisfied to the plaintiff. There were also counts for money had and received, and upon an account stated. The defendants pleaded, first, non assumpsit. Secondly-to the first breach, in the first count-that they did, after the delivery to them of the said bill of exchange as in the declaration mentioned, and before and until they had determined whether they would pay the sum of money in the bill expressed or return the bill to the plaintiff, use due care to prevent the acceptance from being defaced or obliterated-concluding to the country Thirdly-to the same breach-that the acceptance did not become, nor was, defaced or obliterated, modo et form4-concluding to the country. Fourthly-to the last breach in the first count-that the defendants did return the bill to the plaintiff without [344] having cancelled or destroyed the acceptance- concluding to the country. Fifthly-as to so much of the breach in the first count of the declaration lastly assigned as imputed to the defendants that they cancelled the said acceptance, and returned the bill to the plaintiff with the acceptance cancelled-that the said promise in the said first count mentioned was...
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